When To Challenge A Will Based On Undue Influence

After a loved one passes away, family members are often surprised to learn who has inherited under the will. In many cases, the person who has inherited under the will - the beneficiary - is a non-family member who seemed to have exerted disproportionate control over the loved one - the decedent - and inherited a substantial sum under the will.

Often, the family members seek the advice of an elder law attorney with litigation experience to challenge the will in what is called a will caveat.

Here are factors experienced elder law litigators assess in representing clients in a will contest for undue influence:

Strong proof: To prevail in a North Carolina caveat proceeding on a claim of undue influence, there must be proof that (1) the decedent was susceptible to influence; (2) the beneficiary had opportunity to exert influence; (3) the beneficiary had a disposition to exert influence; and (4) the will indicates the result of the undue influence. Usually, courts find susceptibility to undue influence with: old age; physical or mental weakness; constant supervision by the beneficiary; little opportunity to see the decedent without the beneficiary; a will that differs from a past will; a will that favors a non-family member; a will that disinherits family members; and an instance in which the beneficiary seeks to procure the execution of a will. No single factor will control.

Likeable clients: If a client appears open, honest, credible and likeable, there is a much better chance of prevailing. A judge or jury is less likely to rule favorably for a client who comes across as greedy, judgmental or pompous. A history of strong discord between the beneficiary and clients may be unfavorable for a client’s case.

Credible supporting witnesses: Neutral witnesses who can verify a client’s position can significantly impact the outcome of a will caveat proceeding. Caregivers, financial advisors, medical providers, neighbors and some other family members can offer this unbiased testimony because they have no stake in the outcome of the caveat contest.

Medical records: Medical records can demonstrate a history of the decedent’s mental or physical decline. These records, created by a credible, neutral party, can also demonstrate whether the will was executed at a time when the decedent was susceptible to undue influence by age or infirmity.

Amount at stake: If there is too little at stake, the amount may not justify the time and resources necessary to pursue litigation. Experienced litigators rarely take a caveat case on a contingency, which means the client must decide whether the payment of hourly services upfront will be justified by the end result.

While the circumstances of each case will vary, the culmination of these elements may be beneficial for a client’s will contest based on undue influence. Seek out an elder law attorney with litigation experience to learn more.

Andrew Olsen is an attorney in the CSH Law Elder Law Practice Group in Wilmington, NC, where he practices in the areas of elder law, estate planning probate, guardianship, alternative dispute resolution, estate and trust litigation, special needs planning and veteran’s benefits. To contact Olsen, call (910) 777-5733 or email him at [email protected].